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STATE OF MINNESOTA IN SUPREME COURT A09-0969

Leon S. DeCook, et al., Respondents, vs. Rochester International Airport Joint Zoning Board, Appellant.

ORDER

In 2002 the Rochester International Joint Zoning Board enacted a zoning ordinance that increased the size of a runway safety zone and changed the restrictions within the safety zone to allow fewer types of uses of land within the zone. The safety zone extended over property owned by respondents Leon S. and Judith DeCook. The DeCooks brought an inverse condemnation action, alleging that the Board's decision constituted a taking or damaging of private property for public use for which the DeCooks were entitled to compensation. The district court initially granted the Board's motion for summary judgment dismissing the DeCooks' action, concluding that there was no taking as a matter of law. However, the court of appeals reversed the district court and remanded the matter for trial. DeCook v. Rochester Int'l Airport Joint Zoning Bd., No. A06-2170, 2007 WL 2178046, at * 5 (Minn. App. July 31, 2007). 1

On remand to the district court, a jury found that the 2002 ordinance diminished the value of the DeCooks' property by $170,000. But the district court concluded that the diminution of value as determined by the jury did not constitute a taking as a matter of law and entered judgment in favor of the Board. The DeCooks again appealed. The court of appeals reversed. In an opinion filed on March 30, 2011, we affirmed the court of appeals' determination that the 2002 zoning ordinance constituted a taking of the DeCooks' property. DeCook v. Rochester Int'l Airport Joint Zoning Bd., 796

N.W.2d 299, 309 (Minn. 2011). We remanded the matter to the district court for entry of judgment in favor of the DeCooks. The DeCooks then moved for an award of attorney fees incurred during the three appeals: the 2007 appeal to the court of appeals from the district court's initia l grant of summary judgment, the 2009 appeal to the court of appeals after the jury trial, and the subsequent appeal by the Board to our court. The DeCooks contend that their appellate attorney fees are authorized under Minn. Stat.

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